A DIALOGUE WITH THE PEOPLE, OR A JURICENTRIC VIEW OF THE WORLD?
By SANFORD LEVINSON
|Tuesday, Jul. 23, 2002|
Alexander Bickel once wrote that "[v]irtually all important decisions of the Supreme Court are the beginnings of conversations between the Court and the people and their representatives." This metaphor is not a conceit only of academics: Much more recently Supreme Court Justice Ruth Bader Ginsburg insisted that judges "do not alone shape legal doctrine but . . . they participate in a dialogue with other organs of government, and with the people as well."
Is the Court Really in a Dialogue with the People?
In sharp contrast to Justice Ginsburg's view, a majority of the current Court has insisted that, far from being a dialogical partner with Congress in, say, construing such "majestic generalities" of the Constitution as the meaning of Equal Protection of the Law, it alone is capable of engaging in the task of constitutional interpretation.
Professors Reva Siegel of Yale and Robert Post of the University of California have referred to the Court's increasingly "juricentric" view of the Constitution. By that, they mean its notion of the Constitution as, basically, the Court's property, with the traditional property right to exclude all others from a share in shaping it.
I myself have contrasted "catholic" and "protestant" views of the Court's authority, and argued that the contemporary majority has adopted a "papalist" reading of its own position that exhibits more a contempt for Congress than an invitation to genuine conversation. A more "protestant " notion of the Court would indeed see it as only one partner in a complex institutional conversation.
Indeed, if one is a radical "protestant," akin to the Dissenting sects of the Reformation and post-Reformation period such as the ancestors of modern-day Baptists, one could even envision a radical equality that rejects the idea of any institutional hierarchy with authority to announce binding doctrine. The Court, on this view, would be only one interpreter among equals - not first among equals or, as the Court currently sees itself, first and only.
Which view accurately represents current practice? As noted above, the Court's current method of delivering opinions is telling evidence against a dialogic view, and for a juricentric one.
How the Court Currently Delivers Its Opinions
Opinions are delivered as the Court wishes. Even if it is known which days will be "opinion days," there is no indication what cases, in particular, will come down. The only exception to this rule comes on literally the last day of the Term, when it is obvious what cases have been argued and not yet decided.
In the early part of the Court's term, which runs from October to June, the cases on which the court delivers opinions are rarely of any great significance to the general public. (One should not forget, however, that Roe v. Wade was announced in January, just three weeks before the almost equally important decision in the Texas school finance case, Rodriguez v. San Antonio Board of Education).
Linda Greenhouse's Critique of the Court's Timing
Linda Greenhouse, the long-time reporter on the Supreme Court for the New York Times, has expressed her view that "it's unfortunate that the Court sits only one day a week in May and most of June, leading to the issuance of four, five, six major opinion in a single day - and on one notorious June day in the late 1980's, to the issuance of an entire volume of United States Reports." (The U.S. Reports is the compilation of the Court's opinions; a single volume is hundreds of pages long).
Interestingly enough, as Greenhouse recently told scholars at a conference on constitutional law, she once expressed her view to the Chief Justice, "who replied quite amiably: 'Well, just because we put them out on the same day doesn't mean you have to write about them all on the same day. Save some for the next day.'" One does not know whether he was being willfully obtuse or, engaging in an attempt at humor, but this is scarcely the view of someone seriously interested in effective communication with the public.
But simply alleviating the problem posed by "stacked" opinions and spreading them out over more days would scarcely guarantee effective communication. Greenhouse, of course, writes for the nation's leading newspaper, and most legal academics probably do indeed view her as an essential source of information and insight. But, obviously, most people, including those interested in the Court, do not read the New York Times or even a daily newspaper that includes serious coverage of the Court. So how might they find out about the decisions of the Supreme Court? (Of course, this website provides one way, with both a Recent Decisions section and ongoing commentary on decided cases - but many other ways should also be available.)
The C-Span Solution: Covering Justices Who Read Opinions and Dissents
One stunningly obvious way is by watching the decisions announced on television, on C-Span. The Court, of course, has proved truly luddite in its willingness to embrace the possibilities of television. It was viewed as a major breakthrough that the Court allowed radio transmission of the arguments in Bush v. Gore, but one suspects that the Court wishes to forget everything associated with that dreadful episode.
Perhaps there is some merit in the Court's resistance to allowing coverage of its oral arguments (though I confess I am unpersuaded). Is there any conceivable reason, though, why the Justices ought not welcome C-Span cameras to cover the announcement of opinions?
One might, of course, say that such coverage would be terminally dull, inasmuch as the Court, most often, simply announces that a decision has been reached and an opinion rendered in one case or another. It has been years since the Court stopped its prior practice of reading in full the various opinions issued in cases. But the custom is not entirely lost.
Greenhouse actually agrees "that most justices see themselves as communicating to a wider public," and she offers as one example that "justices from Scalia to Stevens announce their dissents from the bench when they feel strongly enough that the majority has made a mistake. Their written dissents, of course, go into United States Reports. Their oral dissents are likely to be reflected in the next day's stories."
If judges do indeed want to communicate such concerns to the public through public speech, rather than merely written words, then why shouldn't they take the most direct route and speak to their fellow citizens directly through the medium of television?
This is, obviously, a far cry from the notion of being publicly interviewed and, God forbid, asked probing questions by knowledgeable journalists like Greenhouse. But it would allow the judges to reveal themselves more effectively to a public that might learn a great deal from hearing the passion in a judge's voice, or the particular inflections placed on certain terms when registering dissent.
And, of course, it is not only dissenters who take advantage of the ability to communicate more directly with those in attendance at the Court and, through the reporters, to the wider public. At least one member of the Court, the former Harvard law professor Stephen Breyer, has been described as being quite "chatty" in delivering summaries of his opinions, and another former professor, Justice Ginsburg is said to offer "elegant" summaries that appear quite clearly to be written by herself.
Even the more rote, clerk-prepared summaries (of clerk-authored opinions) offered by some other justices may nonetheless be revealing of what a justice might consider the most important aspects of an opinion. The public would presumably become more enlightened and the possibility of genuine dialogue enhanced if all opinions that were read or otherwise discussed, were also televised.
The Justices Do Speak - Just Not on Television, From the Bench
It is difficult indeed to make sense of the Court's current practices in this regard. It would be one thing if, like Trappist monks, they had taken a true vow of silence, leaving their words alone to serve as evidence of their existence. But almost all judges give speeches to a variety of bodies, ranging from high school students to alumni gatherings of their own alma maters to gatherings of the Sons of Italy --without whom, Antonin Scalia is said to have proclaimed, he would not be where he is today!
Indeed, Justice Scalia, in the recent opinion striking down Minnesota's limitations on the speech of candidates for judicial office, noted that "judges often state their views on disputed legal issues outside the context of adjudication--in classes that they conduct, and in books and speeches."
A number of justices moonlight, especially during the summers, as law professors in various European locations, where, it is said, they are often remarkably candid about aspects of the Court's handiwork. What this means, though, is that their "conversations," such as they are, have a random quality and rarely become part of a genuine public conversation. Indeed, they serve as yet one more means by which "insiders" gain information (or sheer gossip) that is kept from the public at large.
It is easy to mock calls for "dialogue" and "conversation," but one should give both Bickel and Ginsburg credit for recognizing that only a genuine conversation among the Court, other political institutions, and, ultimately, the public at large can legitimate the strange role that the Court - with its unelected, life-tenured Justices - plays within the American political system. Opening opinion day to television would be a remarkably modest step that could, nonetheless, provide significant public benefit.